1998 PLP 1304 (SCMR)

NASIR ASLAM ZAHID, J.

By judgment dated 19-6-1997, High Court of Balochistan dismissed the civil. revision filed by the petitioners. Being aggrieved, petitioners have sought leave to appeal against the judgment of the High Court. We have heard at length the arguments of Mr. Tariq Mahmood, learned Advocate Supreme Court for the petitioners and with his assistance, referred to the relevant record.

2. Respondent Abdul Rehman and deceased Muhammad Naeem were real brothers. Plaintiff Abdul Rehman filed a suit for declaration and permanent injunction against his brother and his sons. It is informed by learned counsel that, after the decision of the High Court, Muhammad Naeem died and his widow and daughters have been impleaded as petitioners alongwith the sons of Muhammad Naeem, who were originally defendants alongwith Muhammad Naeem. Suit filed by the respondent in 1991 was dismissed by the Civil Judge, Quetta, in 1994. Respondent filed an appeal which was accepted and the case was remanded to the trial Court, against which judgment the defendants filed a revision which was allowed in the earlier round by the High Court by judgment dated 1-8-1995 On remand, the suit filed by respondent was again dismissed bi judgment dated 28-1-1995, but his appeal was accepted and his suit decreed by judgment dated 23-4-1996. The defendants again came to the High Court and by the impugned judgment of the High Court, the revision was dismissed. According to the plaint, the two brothers, Abdul Rehman and Muhammad Naeem, agreed to refer their disputed relating to immovable property to arbitration of Haji Muhammad Raza and Haji Muhammad Hassan, who were appointed arbitrators. According to respondent, the two arbitrators gave an award dated 23-9-1982 which related to ancestral property of the two brothers as well as the property in dispute and that both brothers acted upon this award and cases pending before the Tehsildar, Pishin, were disposed of the basis of award dated 23-9-1982 of the two arbitrators. According to respondent, the property in dispute was given to the respondent and it has remained in his possession. As confirmation of the fact that the said award was given effect to and acted upon by the parties, it was the case of the respondent that no dispute arose between the parties from 1982 till 1989 and this is admitted before us by learned counsel for the petitioners. Grievance of the respondent then was that a portion of the disputed land which was unutilized and which had come to the share of the respondent, according to the award of 1982, was being interfered with by the defendants and they were not allowing the respondent to cultivate the same. A declaration was sought in the suit that the parties were in possession of the properties as per award of 23-9-1982 and the defendants be restrained from interfering with the property of the respondent. The suit was contested by the petitioners, according to whom no partition had taken place on the basis of the award dated 23-9-1982. In their Written Statement, the petitioners inter alia pleaded as follows:-- "The defendants have never agreed or admitted the award of the arbitrators dated 23-9-1982 and no partition over took place in consequence of the abovementioned award. As such the award mentioned in para. has not attained its finality and the same has become cancelled." In any case, it was submitted on behalf of the petitioners that the disputed land was not ancestral land and the award of 1982 only covered the ancestral land and the award of 1982 only covered the ancestral land of the brothers and as such the said award did not relate to or cover the disputed land. During the trial, the Civil Judge framed six issues, the first issue being a preliminary issue. The other issues related to the disputed land; whether the disputed land was not ancestral property and who was the owner and regarding the arbitration of 1982 and whether the arbitration award was acted upon. As observed, the suit was dismissed by the Civil Judge but the appeal was allowed and the appellate Court decreed the suit of the respondent, which judgment was upheld by the High Court.

3. It was initially argued by Mi. Tariq Mahmood, learned counsel for the petitioners, that the existence of award of 1982 had been denied only a Photo stat copy had been produced during the trial and had referred to the following observation/finding of the trial Court-- "The defendant also stated that no arbitration has been done between the parties nor any award has been passed and complied with by the parties. The original arbitration award has also not been filed before this Court, therefore, it cannot be relied upon, unless it made the rule of the Court. " The contention is wholly misconceived. Firstly, it may be observed that the original award, dated 23-9-1982 had been produced before the trial Court during his evidence by the respondent. Evidence of the respondent given before the Civil Judge appears at pages 75--78 of the paper book. In his evidence, the respondent has inter alia stated (at page 76 of the paper book) as follows:-- Reference has already been made to para. 2 of the Written Statement filed by the petitioners in which they have not denied the existence of the award of the arbitrators dated 23-9-1982; their plea was that they did not agree or admit the said award and that no partition ever took place in consequence of the said award and that the award had not attained finality and the same had become cancelled. The fact that the parties had agreed to refer disputes relating to immovable properties, subject-matter of the award, and the fact that the two arbitrators had given the award dated 23-9-1982 is supported not only by the pleading of petitioners, but also from the facts on record. The existence of these facts cannot be denied.

4. A legal proposition relied upon by the Civil Judge in his original judgment that the award of 1982 had not been filed before the Court and could not be relied upon unless it was made rule of the Court requires some comments as, in the circumstances of this case, the said proposition has been applied out of context by the Civil Judge. Generally, when an award is given and it is disputed by one party, the other party approaches the Civil Court and prays for the award to be made a rule of the Court and once this is done and the award having become a rule of the Court it has the effect of a decree passed by a Civil Court. However, the decision is different where an award is given without intervention by a Civil Court and the said award is accepted and acted upon by the parties to the award. In such a case, a party relying upon such an award can file a suit on the basis of such award. Reference can be made to two judgments of this Court relied upon by the High Court in the impugned judgment. First is the case of Muhammad Saleem v. Muhammad Akram (PLD 1971 SC 516), where it was held that if an award has been made to an arbitration out of Court then parties will be entitled to size or defend on the basis of that award if it has been accepted and acted upon by the parties by mutual consent. The other judgment is in the case of Abdul Karim v. Bashir Ahmad (PLD 1974 SC 61) in which it was inter alia observed as follows:-- "The scheme of the Arbitration Act is to prevent the parties tar an arbitration agitating questions relating to arbitration in any manner other than that provided by the Act. It is for this reason that the section bars a suit concerning the existence, effect or validity of an arbitration agreement or award. It also prohibits a suit for setting aside, amending, modifying or, in any way, affecting an arbitration agreement or award otherwise than permitted by the Act. This is the true scope of this section. However, the section does not bar a suit which proceeds on the basis of certain acts done by the parties after accepting the award. In such a case there is no challenge to the existence, effect or validity of the award, nor is there any move to have the award rescinded or modified ........... The appellant had based his suit on the averment that there had been an arbitration award out of Court, that the award had been implemented, and that in pursuance of such implementation the respondent had become a tenant of the appellant in the property in suit. If these averments were correct, then the suit filed by the appellant did not come within the mischief of section 32 of the Arbitration Act, as it did not seek to question the award in any manner." In Abdul Karim v. Bashir Ahmad (PLD 1974 SC 61) reference has been made to a judgment of the Indian Supreme Court in the case of Kashniathea v. Naragingea (AIR 1961 SC 1077), in which judgment it was observed as follows:-- "Where an award made in arbitration out of Court is accepted by the parties and it is acted upon voluntarily and a suit is thereafter sought to be filed by one of the parties ignoring the acts done in pursuance of the acceptance of the award, the defence that the suit is not maintainable is not founded on the plea that there is an award when bars the suit but that the parties have by mutual agreement settled the disputed land that the agreement and the subsequent acting s of the parties are binding. In such a case by setting up a defence in the partition suit that there has been a division of the property and the parties have entered into possession of the properties allotted, the defendant is not seeking to obtain a decision upon the existence, effect or validity of an award. He is merely seeking to set upon a plea that the property was divided by consent of parties. Such a plea is not precluded by section 32."

5. It was then argued by Mr. Tariq Mahmood, learned counsel for the petitioners, that the award dated 23-9-1982 covered only the ancestral properties inherited by the two brothers and admittedly the disputed land was not ancestral property. We find no merit in this contention also. The award, no doubt, related to ancestral properties but it also covered the property in dispute and made a decision as to whom it should belong. The award shows that this property came to the share of the respondent.

6. The plea raised on behalf of the petitioners that the award of 1982 had not been acte4joupon, is also without force. It has been admitted that from 1982, when the award was given, till. 1989, there was no dispute between the parties and in fact, on the basis of the award, disputes pending between the brothers in the Courts were disposed of. The appellate Court's judgment which has been confirmed by the High Court that the award dated 23-9-1982 was accepted and implemented by the parties is supported by the evidence on record. No ground for interference is trade out.

7. As a result, this petition is dismissed and leave is refused. A.A./N-19/S Leave refused.